Citation Nr: 0013743
Decision Date: 05/24/00 Archive Date: 05/30/00
DOCKET NO. 99-02 662 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to service connection for sinus disability.
2. Entitlement to service connection for jaw disability.
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
REMAND
The veteran reportedly had active service from January 1962
to January 1964.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an April 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky.
The veteran is seeking service connection for sinus
disability and service connection for jaw disability, which
he contends is due to extraction of teeth on the left side.
In conjunction with his application for benefits, the veteran
reported that he had received treatment for his sinus problem
from 1987 to the present at the VA outpatient clinic in
Evansville, Indiana, and he stated that he received treatment
concerning his teeth at the VA Medical Center (VAMC) in
Louisville, Kentucky, in 1996.
Review of the record shows that in March 1998 the RO
requested the Louisville VAMC to provide outpatient records
for the veteran dated from April 1996 to the present.
Thereafter, the RO received outpatient records dated from
March 1996 to February 1998 from the Louisville VAMC and also
received a hospital discharge summary concerning
hospitalization of the veteran at the VAMC in Louisville in
January 1997. There is no indication that the RO requested
or received any earlier-dated records, including dental
records, from the VAMC in Louisville, nor does the record
indicate that the RO requested records for the veteran from
the VA outpatient clinic in Evansville, Indiana.
VA treatment records to which the veteran referred in his
application for benefits could be relevant to his claims.
The United States Court of Appeals for Veterans Claims
(Court) has held that where "relevant" documents relating
to an appellant's claim were within the Secretary's control
(for example, records generated by VA) prior to a Board
decision on appeal and could reasonably be expected to part
of the record before VA, such documents are "in
contemplation of law" constructively part of the record.
Blount v. West, 11 Vet. App. 32, 33 (1998); Simington v.
Brown, 9 Vet. App. 334, 335 (1996); Bell v. Derwinski, 2 Vet.
App. 611, 61`2-13 (1992). As there is no indication in the
record that the RO has attempted to obtain the VA treatment
record referred to by the veteran, development to obtain this
additional evidence is in order prior to a determination of
whether the claims are well grounded.
Accordingly, the case is REMANDED to the RO for the following
actions:
1. The RO should contact the veteran and
request that he provide the names and
approximate dates of treatment for all VA
health care facilities where he has
received treatment or evaluation of his
sinus disability or his jaw disability at
any time since service. With any
necessary authorization from the veteran,
the RO should attempt to obtain copies of
records identified by the veteran, which
have not been obtained previously. In
any event, the RO should attempt to
obtain and associate with the claims file
copies of VA treatment records for the
veteran from the VA medical facility in
Evansville, Indiana, dated from 1987 to
the present and of all VA treatment
records, including dental records, for
the veteran from the VAMC in Louisville,
Kentucky, dated at any time in 1996.
2. The RO should review the claims file
and ensure that the requested development
actions have been conducted and completed
in full. The RO should undertake any
other indicated development and then
readjudicate the issues on appeal. The
RO should again determine whether the
claims are well grounded. If so, the RO
should evaluate the merits of any well-
grounded claim, but only after ensuring
that the duty to assist under 38 U.S.C.A.
§ 5107(a) (West 1991) has been fulfilled.
If the benefits sought on appeal are not granted to the
veteran's satisfaction, the RO should issue a supplemental
statement of the case, and the veteran should be provided an
appropriate opportunity to respond. Thereafter, the case
should be returned to the Board for further appellate
consideration, if otherwise in order. By this REMAND, the
Board intimates no opinion as to any final outcome warranted.
No action is required of the veteran until he is otherwise
notified by the RO.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded to the
regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This case must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).